Richardson and Newbould, JJ.
1. Thirteen properties were mortgaged by the judgment-debtor, the appellant before us, to the decree-holder, the first respondent, by an instrument dated the 15th Ashar 1312 (29th June, 1905). The first respondent, Mahananda Chakravartti, brought a suit upon his mortgage on the 4th December, 1908, and on the 22nd April, 1909, a decree was made therein in the usual form for payment of the mortgage debt or in default for the sale of the mortgaged properties. On the 24th June, 1909, the appellant mortgaged one of the thirteen properties (No. 11) by way of conditional sale to the other respondents in this appeal who are described as the petitioners. The latter brought a suit upon their mortgage and under the decree which they obtained, dated the 8th June, 1911, they foreclosed the mortgage and entered into possession of property No. 11. Mahananda Chakravartti having obtained in the execution department an order for the sale of the properties mortgaged to him, the petitioners came in and applied that the properties other than No. 11 should be sold first, and that No. 11 Should be sold last. The application was opposed both by Mahananda Chakravartti and the appellant but was allowed by the learned Subordinate Judge by an order dated the 15th March, 1912. Mahananda Chakravartti has not appealed from that order. The appellant is, as we have said, the judgment-debtor, Tara Prasanna Bose. It will be observed that the petitioners' interest arose after Mahananda obtained his decree.
2. The first question which arises is whether the petitioners were at liberty to come in under Section 47 of the Civil Procedure Code and apply as they did. In our opinion, on the authorities, the question must be answered in the affirmative. It is clear that the petitioners are bound by the decree made in the suit brought by Mahananda Chakravartti. They are therefore, as regards property No. 11, the representatives of Tara Prasanna Bose within the meaning of Section 47: Ishan Chandra Sirkar v. Beni Madhub Sirkar (1896) I.L.R. 24 Calc. 62. The question involved in the application was substantially a question arising between the petitioners and Mahananda Chakravartti, though it might also involve a separate and distinct question arising between the petitioners and Tara Prasanna Bose. The contention, therefore, urged on behalf of the appellant, that the application as an application under Section 47 was incompetent, must be rejected. Then it was said that if the application was competent, the learned Judge had no power to make the order appealed from. The Courts, however, have power in appropriate circumstances, to make such orders, under Sections 56 and 81 of the Transfer of Property Act.
3. In regard first to Section 81, no doubt that section only applies where the second mortgagee had no notice of the first mortgage. But no question of notice was raised in the Court below or in the grounds of the appeal preferred to this Court. Till the appeal came to be argued before us, it was never suggested either by Mahananda or by Tara Prasanna that the petitioners had notice of the mortgage to Mahananda. We cannot allow the question to be raised for the first time in appeal.
4. Apart from that, the petitioners being now in the position of purchasers from. Tara Prasanna Bose, the elevant section is, in our opinion, Section 56 and the petitioners have as against Tara Prasanua Bose a positive right to have Mahananda's mortgage satisfied out of the properties other than property No. 11 so far as they will extend.
5. On the merits it was argued that the petitioners had no right to have property No. 11 exempted from the burden of Mahananda's mortgage, because what they had acquired was merely the right to redeem Mahananda. But to say this is to raise the question of notice under Section 81 in another form and even if the case fell to be decided under Section 81 and not under Section 56, the contention is met by the observation already made that no such suggestion was made in the lower Court. It was not suggested then--and so far as there are any indications on the record, it is not the case--that the petitioners dealt with or acquired property No. 11 otherwise than on the footing that it was an unencumbered property.
6. The case of Kommineri v. Mangala (1908) I.L.R. 31 Mad. 419 to which reference was made in the argument, is of no assistance to Tara Prasanna. Section 56, as we have said, gives the petitioners a positive right as against him. Mahananda the first mortgagee, has not appealed and it is not open to Tara Prasanna to take the objection that the order should not have been made in opposition to Mahananda's wishes, an objection which Mahananda himself has not seen fit to press.
7. A preliminary objection was taken on behalf of the petitioners that the appeal does not lie. It was suggested that the order in question might be supported without reference to the Transfer of Property Act, as an order under-clause (2) of Rule 5 of Order XXXIV of the Civil Procedure Code, and it was argued that no 'appeal would lie from such an order. In the view we have already indicated it is unnecessary for us to express an opinion on the second branch of this contention or to say more than that in the circumstances this order, made at the instance of the petitioners, who were not parties to Mahananda's suit, cannot be regarded merely as an order under Rule 5 of Order XXXIV and that holding as we do that the case falls within Section 47 of the Code the order amounts to a decree within the meaning of Section 2 of the Code and is therefore appealable.
8. The appeal fails and is dismissed with costs.